FASCINATING FALL-OUT FROM A TRUMP PROSECUTOR’S MEMOIR OF A CASE THAT DIDN’T HAPPEN … AT LEAST NOT YET

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By John B. Harris —

This article was originally published January 25, 2023.

There is a long and rich history in the United States of government officials writing “tell-all” books about their experiences. Vincent Bugliosi wrote about his prosecution of Charles Manson. Two ex-prosecutors wrote “Stonewall,” the “real story” of the Watergate prosecutions. Jeffrey Toobin wrote “Opening Arguments” about his role in the Iran-Contra investigation. Kenneth Starr wrote “Contempt” about his Whitewater prosecution. And John Bolton, James Comey and Andrew McCabe (among others) wrote revealing books about the workings of the Trump Presidency.

There’s also a long and rich history of government outrage (and sometimes litigation) because these works allegedly disclose confidential, classified or privileged information in violation of the author’s fiduciary or contractual obligations, or because of disputes regarding the government’s often cumbersome vetting process. See, e.g., Penguin Books USA v. Walsh, 756 F. Supp 770 (S.D.N.Y. 1990) (allowing publication of Toobin book; whether or not having prosecutors publish is a wise idea, “there is no permanent “gag” on prosecutors from speaking or writing about investigations and prosecutions which they have conducted or in which they have been involved”), vacated, 929 F.2f 69 (2d Cir. 1991).

The latest controversy involving a former prosecutor’s book is an especially bizarre addition to this canon. On January 18, 2023, the Manhattan District Attorney demanded that its former prosecutor, Mark Pomerantz, “pause” the scheduled February 7 publication date of his new book, “People v. Donald Trump: An Inside Account,” so that the DA can review it to make sure pending investigations are not compromised by his disclosures. (The DA has not yet seen the manuscript.)

What’s going on? Well, Pomerantz’s book focuses on something that didn’t happen while he was in the DA’s office: the indictment of former President Donald Trump, a non-event Pomerantz has described as a “grave injustice.”  But – less than a year after Pomerantz’s angry resignation because of this alleged inaction – the DA says it is now actively pursuing just such a prosecution. The DA is concerned that Pomerantz’s publication of a book setting forth the case against Donald Trump (and lamenting that it was never filed) at the same time as the DA is preparing to bring the case against Donald Trump could be harmful to the prosecution (and, one might add, would be very confusing).

Put differently, assuming People v. Donald Trump is published on schedule, it would be the first prosecutorial “tell-all” in American history written about a criminal case before it was ever filed.

If this sounds weird, it is.

Pomerantz is a well-known former federal prosecutor and criminal defense lawyer. In February 2021, at the behest of then-District Attorney Cyrus Vance, Pomerantz joined the DA’s office as one of the leaders of the team probing Donald Trump’s financial dealings. In that role, Pomerantz formed the strong view that Trump was “guilty of numerous felony violations” involving false financial statements and was said to be preparing to present the case to a grand jury in late 2021. However, in November 2021, with Vance retiring, Alvin Bragg was elected DA.

In March 2022, Pomerantz noisily resigned from the DA’s office because, as he described it, Bragg had decided to indefinitely suspend the pursuit of an indictment against the former President. In an open letter to Bragg, Pomerantz noted that Bragg had raised “issues as to the legal and factual sufficiency of the case” and questioned “the likelihood that a prosecution would succeed.” Pomerantz had tried, unsuccessfully, to persuade Bragg that, although “no case is perfect,” prosecutors believed Trump would be convicted before an impartial jury.

Pomerantz declared that Bragg’s decision not to prosecute Donald Trump immediately on the existing record “is misguided and completely contrary to the public interest” and “will doom any future prospects that Mr. Trump will be prosecuted for the criminal conduct we have been investigating,” leaving Trump a free man when (in Pomerantz’s view) he should not be.

In the ensuing months, Pomerantz wrote a book to address this perceived injustice and secured Simon & Schuster as its publisher. According to the Amazon blurb about the new book, it tells the story of Pomerantz’s “unprecedented investigation, why he believes Donald Trump should be prosecuted, and what we can learn about the nature of justice in America from this extraordinary case.” The book is described as a “cautionary tale that illuminates the challenges of prosecuting Donald Trump, why Trump manages to dance between the raindrops of accountability,” and how prosecutions in other jurisdictions might still bring him to justice. Simon & Schuster adds that the book explains why a justified indictment “never happened.”

It turns out that “never” might be a pretty short time. Notwithstanding Pomerantz’s resignation, in 2022 Bragg’s office continued to pursue a case against Allen Weisselberg, the long-time CFO of the Trump Organization, obtaining a guilty plea in August. The Office also obtained a conviction at trial in December of the Trump Organization for criminal tax fraud and falsifying business records.

In the midst of this activity, on November 21, 2022, the press first reported that the DA had decided to “resuscitate” the Trump inquiry (The New York Post) and “breathe new life into an inquiry that seemed to have reached a dead end.” (The New York Times). According to the Times, “the prosecutors had decided to return to the investigation’s original focus under Pomerantz, i.e., the making and accounting for a 2016 “hush-money payment” to Stormy Daniels, a “porn star who said she had an affair with Mr. Trump.”

Whatever prompted this revival of a potential prosecution against Trump, subsequent media reports have indicated that Michael Cohen, President Trump’s former lawyer, and others involved in the alleged scheme to pay Daniels to buy her silence have been meeting with attorneys in the DA’s office as the investigation heats up.

On January 18, 2023, the DA’s general counsel wrote to Simon & Schuster that, “in light of the pre-publication descriptions of his book and the benefit of current knowledge of the matter,” the DA “believes there is a meaningful risk that the publication will materially prejudice ongoing criminal investigations and related adjudicative proceedings.” The letter continued by saying that Mr. Pomerantz had previously promised to obtain “prior written permission” from the DA before making any disclosure “relating to the ‘existence, nature, or content’ of any communications or records or documents that relate in any manner” to the investigation. The DA promised to take no more than 60 days for its review.

According to the Wall Street Journal on January 18, 2023, Pomerantz and his publisher have declined the request to submit the manuscript and intend to publish on February 7, as scheduled. Pomerantz stated: “I am confident that all of my actions with respect to the Trump investigation, including the writing of my forthcoming book, are consistent with my legal and ethical obligations.”

Neither Pomerantz nor his publisher has addressed the obvious disconnect between one of the premises for the book – the DA’s failure to indict Trump – and the DA’s current pursuit of such an indictment. One may infer that, by publishing, Pomerantz either does not believe the DA actually intends to proceed or that his book will not impair any future prosecution. How ironic it would be if publication of the People v. Donald Trump made it harder to obtain the very guilty verdict that Pomerantz so desires, or makes Pomerantz’s predictions of “doom” from the delay a self-fulfilling prophecy.

As to the legal issues, it is hard to assess the merits of the parties’ positions at this juncture, especially without knowing the book’s actual contents. The DA’s Office has not asked a court to enjoin publication, and it would face a heavy burden to impose such a prior restraint on publication. See, e.g., Neb. Press Ass’n v Stuart, 427 U.S. 539 (1976). For a government to impose a prior restraint on freedom of expression, it must generally show that such expression “will immediately and irreparably create public injury.” Arcara v. Cloud Books, 68 N.Y.2d 553, 558 (N.Y. 1986).

Nevertheless, this case has unique aspects. In most every other tell-all book by a prosecutor, the author talks about a prosecution where the evidence has already been presented in court and, at most, all that remains are appeals. The potential prejudice is much more direct when the book is published before trial. Here, to the extent that Pomerantz makes the case that Trump should have been indicted, he is doing so before his successors have presented that evidence, either to a grand jury or in open court. One can readily imagine a Trump defense lawyer seeking to exploit disclosures in the book such as Bragg’s doubts about proceeding or potential differences in the characterization of evidence between Pomerantz and his successors. Whether any of these factors is sufficient to establish immediate and irreparable “public injury” is open to question.

There is also the possibility of a claim that the prosecutor has violated New York Rules of Professional Conduct 3.6, which forbids a lawyer who “has participated” in a criminal matter from making a public, extrajudicial statement that the lawyer knows or reasonably should know “will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” The Rule provides that a statement is likely to be materially prejudicial if (among other things) it relates to the “character, credibility, reputation or criminal record of a party,” or expresses “any opinion as to the guilt or innocence of a defendant or suspect in a criminal matter that could result in incarceration.” Of course, we don’t yet know what is in the book so assessing the extent of potential prejudice is impossible.

By the same token, Pomerantz is surely aware of his obligations as a former prosecutor and has concluded that he need not share the manuscript with the DA. He may well assert that the book appropriately relies on the mass of public information about the case against Trump or merely reflects his opinions on topics such as the societal consequences of the failure to indict before now. As he no doubt correctly stated in his resignation letter: “Many of the salient facts have been made public in proceedings brought by the Office of the Attorney General.” Moreover, the “hush money” payment to Daniels was more than 6 years ago, and there have been numerous public disclosures about the underlying facts (including in Congressional inquiries and in the Southern District of New York prosecution of Michael Cohen), as well as in a number of prior books.

As a result, it may be difficult for the DA to show what facts are really “new” in Pomerantz’s manuscript.

It is likely that the legal fall-out from publication will take a long time to resolve. Bragg’s office reportedly copied both the Department of Investigation and the Conflicts of Interest Board on his letter to Pomerantz. To the extent there is any public disclosure of confidential information, that could also lead to a referral to an attorney disciplinary committee. Unsurprisingly, Trump is unhappy with the prospective book and, on January 23, his attorney warned Pomerantz and his publisher that he would sue for defamation and “use every possible legal resource to punish you and your publisher for the incredible financial harm that you have caused my clients to suffer.” (Pomerantz’s response: “If the former president should sue me, I will defend that litigation.”)

As to other future litigation, there is little precedent for an action for damages by the government for improper disclosure of information, though the CIA was able to get a judgment in 2012 seizing all revenues that a former CIA officer would receive from his unvetted and purportedly harmful book, “The Human Factor: Inside the CIA’s Dysfunctional Intelligence Culture.”

With all the moving parts here – the new book, the continuing DA investigation, the threatened defamation suit and the other potential fallout – this one will be worth watching.

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